Cleta M. Barrington v. Larry Norris, Director, Arkansas Department of Correction
49 F.3d 440
8th Cir.
1995
Check Treatment

Cleta M. BARRINGTON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 94-2301.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 16, 1994. Decided March 7, 1995.

with the testimony of a loan officer who prepared the bank‘s internal loan documentation, establish that Feingold knowingly and intentionally executed a scheme to defraud the FDIC insured bank. See 18 U.S.C. § 1344. The evidence indicated that Feingold‘s intention was to provide funds for Biehl‘s project beyond the bank‘s legal lending limit through Crivello in a way so that the bank loan committee and its directors did not know the true purpose of the loan or the nature of the risk involved.

, cert. denied,
.

The evidence also supports a conviction on the counts regarding false entries in bank records under 18 U.S.C. § 1005. The bank examiners who testified as to the loan documents for the loans in question establish the false entries, and other testimony established that Feingold directed the documentation in this manner. Likewise, the evidence supports the conviction on the count alleging false statement to an FDIC bank examiner under 18 U.S.C. § 1001. The materiality of the statement and its falsity were established through testimony regarding the statement in question. Finally, the count alleging that Feingold submitted a false FDIC Officer‘s Questionnaire is supported by ample evidence to prove that Feingold answered the questionnaire with the knowledge that it was false as it related to the Crivello loan and its ties to the Biehl project, and that it was submitted in an effort to further hide the true nature of the loan from the FDIC. See 18 U.S.C. § 1007;

, cert. denied,
.

5. Denial of Motion to Suppress Electronic Surveillance Evidence

The investigation into possible bank fraud by Feingold came as a result of a tip to the FDIC from a loan officer of the bank. The FDIC secured the key documents regarding the Crivello and Biehl loans as a result of a surprise safety and soundness examination specifically targeting those loans. The FBI became involved in the investigation following this examination. Another independent FBI probe of people associated with the bank involved the use of electronic surveillance which may have intercepted phone calls by Feingold relating to this case. The FBI reviewed its tapes from the other case but found nothing to materially further its investigation of Feingold‘s bank fraud in the Crivello loan.

Feingold moved to suppress all evidence derived from the electronic surveillance. After an exhaustive two-week hearing in front of a United States Magistrate Judge, the trial court accepted the report and recommendation denying the motion. We find no error in this denial. The Magistrate Judge properly focused the hearing on the independent source exception to the Fourth Amendment exclusionary rule. The evidence at trial was derived from a source independent of the allegedly improper electronic surveillance and was not tainted by the surveillance. See

.

III.

Accordingly, we affirm the conviction in all respects.

Joseph V. Svoboda, Little Rock, AR, for appellee.

Garry J. Corrothers, Little Rock, AR, for appellant.

Before MAGILL, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

Cleta M. Barrington appeals the district court‘s1 denial of her 28 U.S.C. § 2254 petition. We affirm.

Barrington pleaded guilty to possessing with intent to manufacture or deliver methamphetamine, and to possessing drug paraphernalia, in violation of Ark.Code Ann. §§ 5-64-401 and 5-64-403. She filed this habeas petition, claiming that her counsel was ineffective and that her guilty plea was involuntary. The State argued Barrington‘s claims were procedurally barred. Barrington responded that her default should be excused because she was actually innocent. Without conducting a hearing, the magistrate judge recommended denying relief. Barrington filed objections in which she identified a witness and specified what his exculpatory testimony would be. The district court denied relief. On appeal, Barrington argues she can demonstrate her actual innocence so that the merits of her section 2254 petition can be heard, and she requests a remand to the district court with directions to hold a hearing on the issue.

To invoke the actual-innocence exception to the procedural default rule, the habeas petitioner must “show that it is more likely than not that ‘no reasonable juror’ would have convicted [her].”

(interpreting standard of proof established by
). In applying this standard to a request for an evidentiary hearing on actual innocence, “the District Court must assess the probative force of the newly presented evidence in connection with the evidence of guilt.... [T]he court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.”
. Under these criteria, we do not believe Barrington made a sufficient showing of actual innocence to warrant a hearing on the issue. Considering her failure to meet this threshold showing, we conclude the district court properly declined to reach the merits of her petition.

Accordingly, we affirm.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

In light of the testimony Barrington asserts she can present, I believe she is entitled to an evidentiary hearing on the subject of actual innocence, and I would remand this case for that purpose.

Notes

1
The Honorable Stephen M. Reasoner, Chief Judge, United States District Court for the Eastern District of Arkansas, adopting the report and recommendation of the Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas.